JASMEET SODHI, Jaipur V. ITO, Jaipur

ITA 410/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5145 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 19-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMAADDL CIT DR DHK
• Assessee Lawyers: GULSHAN GOYAL
• Keywords: Capital asset; Fair market value; Valuation report; Competent authority

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 410/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 SHRI JASMEET SODHI C-160, BAHUBALI PATH, SHYAM NAGAR SODALA, JAIPUR CUKE VS. THE ITO WARD- 2 (4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: BAWPS 3831 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI GULSHAN GOYAL, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY:SHRI R.A. VERMA,ADDL.CIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 29/08/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 6/09/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A)-1, JAIPUR DATED 22-02-2016 FOR THE ASSESS MENT YEAR 2010-11 RAISING THEREIN FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) CONFIRMED THE ADDITI ON OF RS. 28,44,281/- BEING 1/4 SHARE ON ACCOUNT OF SHORT TE RM CAPITAL GAIN ON SALE OF PLOT BY TAKING THE SALE CONSIDERATI ON OF RS. 2,01,77,124/- ON THE BASIS OF VALE ADOPTED BY THE R EGISTRATION ITA NO. 410/JP/2016 SHRI JASMEET SODHI VS. . ITO, WARD- 2(4), JAIPUR . 2 AUTHORITY AS AGAINST SALE CONSIDERATION OF RS. 1,00 ,00,000/- DECLARED IN THE SALE DEED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ACTIO N OF THE AO AS WELL AS VALUATION OFFICER IN DETERMINING THE FAIR MARKET VALUE OF THE PROPERTY SOLD BY THE ASSESSEE A LONGWITH THREE OTHER CO-OWNERS OF EQUAL SHARE AT RS. 2,01,77 ,124/- AGAINST ACTUAL SALE CONSIDERATION RECEIVED, ACCEPTE D BY THE SUB-REGISTRAR AT THE TIME OF REGISTRATION OF SALE D EED AT RS. 1,00,00,000/- FOR STAMP DUTY PURPOSES. IT IS CONTEN DED THAT THE FAIR MARKET VALUE OF THE PROPERTY DETERMINED B Y THE VALUATION OFFICER /AO IS SOLELY BASED ON THE DECISI ON OF DIG (STAMPS) WHO HAD MADE THE UPWARD REVISION OF THE ST AMP DUTY VALUATION OF THE PROPERTY TREATING THE SAME AS COMMERCIAL PROPERTY IN THE FORM OF VACANT PLOT OF L AND DECLARED BY THE ASSESSEE AND ACCEPTED BY THE SUB-RE GISTRAR WHILE REGISTERING THE SALE DEED. NO ANY OTHER MATER IAL WAS BROUGHT ON RECORD TO JUSTIFY THE MARKET VALUE OR NO INDEPENDENT ENQUIRES WERE CONDUCTED. 2.1 AT THE OUTSET OF THE HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT THE SIMILAR ISSUE HAS ALREADY BEEN DECIDED BY THE C OORDINATE BENCH VIDE ITS ORDER DATED 13-05-2016 IN THE CASE OF SMT. ANIT A SODHDI VS. ITO, WARD- 1(3), JAIPUR AND THE COORDINATE BENCH HAS RES TORED THE ISSUE TO THE FILE OF THE AO TO MAKE DE NOVO ASSESSMENT. HENCE, THE ISSUE IN QUESTION OF THE ASSESSEE IS COVERED BY THE DECISION OF COORD INATE BENCH IN THE CASE OF SMT. ANITA SODHI VS. ITO (SUPRA). 2.2 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. ITA NO. 410/JP/2016 SHRI JASMEET SODHI VS. . ITO, WARD- 2(4), JAIPUR . 3 2.3 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE RECORD TH AT THE ISSUE IN QUESTION OF THE ASSESSEE IS COVERED BY DECISION OF COORDINAT E BENCH (SUPRA) IN WHICH THE COORDINATE BENCH HAS OBSERVED AS UNDER- 2.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE TO BE ADJU DICATED IN THIS APPEAL IS WHETHER THE DVO AND STAMP VALUATION AUTHO RITY WERE JUSTIFIED IN TREATING THE PROPERTY IN QUESTION AS C OMMERCIAL. IT IS OBSERVED THAT THE PROPERTY IN QUESTION WAS TRANSFER RED BY THE ASSESSEE BY WAY OF SALE DEED DATED 15-01-2010 DULY REGISTERED WITH REGISTERING AUTHORITY. THERE IS NO REFERENCE IN THE SALE DEED THAT THE PROPERTY WAS COMMERCIAL. ON THE CONTRARY, IT IS STATED THAT THE PROPERTY IS RESIDENTIAL IN NATURE. FROM THE EVIDENC E IN THE FORM OF LETTER DATED 16-10-2007 OF THE AUTHORIZED OFFICER O F JDA, IT IS STATED TO BE A RESIDENTIAL PROPERTY. IT IS NOTICED THAT TH E METHOD APPLIED FOR ADOPTING VALUATION BY THE DVO IS DLC RATE FOR CORRESPONDING LAND. THE REASON FOR ADOPTION OF SUCH METHOD IS STA TED THAT THIS BEING THE TIME BARRING CASE, HENCE NO SALE INSTANCE S WERE AVAILABLE. IT IS FURTHER OBSERVED BY THE DVO THAT T HE LAND IS SITUATED ON ANCILLARY ROAD TO MAIN AMER ROAD, JUST BEFORE JORAWAR SINGH ROAD GATE. PRESENTLY, A HOTEL IS RUNN ING ON THE SAID PLOTS. BESIDES THESE PLOTS, SOME PLOTS ARE STILL IN RESIDENTIAL USE. IT IS NOTICED THAT THE DATE OF INSPECTION OF THE PROPE RTY IS STATED TO BE 17-12-2012. HOWEVER, THE DATE OF REGISTRATION OF SA LE DEED IS ON 15-01-2010. FROM THE AFORESAID OBSERVATIONS OF THE VALUATION REPORT, IT CAN BE INFERRED THAT THE DVO HAS NOT GIV EN HIS FINDING WITH REGARD TO THE NATURE OF LAND AS ON 15-01-2010 WHETHER THE LAND WAS BEING USED FOR COMMERCIAL PURPOSES. WE NOT ICE THAT THERE ARE CLEAR CONTRADICTIONS IN THE EVIDENCES GIVEN BY THE JDA AND THE REASONINGS GIVEN BY THE DVO. IT IS INCUMBENT UPON T HE DVO TO GIVE CLEAR FINDING ABOUT THE NATURE OF PROPERTY AS ON 15-01-2010 I.E. WHEN THE LAND WAS TRANSFERRED BY THE ASSESSEE. WE FEEL THAT JDA IS A COMPETENT AUTHORITY TO COMMENT UPON THE NA TURE OF PROPERTY. AFTER CONSIDERING THE MATERIALS PLACED ON RECORD IN THE FORM OF DVOS REPORT AND LETTERS OF THE JDA, WE ARE OF THE ITA NO. 410/JP/2016 SHRI JASMEET SODHI VS. . ITO, WARD- 2(4), JAIPUR . 4 CONSIDERED VIEW THAT THE REPORT SUBMITTED BY THE DV O IS FAULTY AND DOES NOT INSPIRE CONFIDENCE. HENCE, WE DEEM IT PROP ER THAT THE ISSUE OF NATURE OF THE LAND IN QUESTION AS ON 15-01 -2010 WHEN SALE DEED WAS EXECUTED BY THE ASSESSEE REQUIRES VERIFICA TION. THUS THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE ON TH IS ISSUE AND THE ISSUE IN QUESTION IS RESTORED BACK TO THE FILE OF T HE AO TO DECIDE IT AFRESH. THE AO WILL VERIFY THE DETAILS FROM THE CON CERNED AUTHORITIES AND ALSO MAKE INDEPENDENT ENQUIRY FOR A SCERTAINING THE NATURE OF THE LAND IN QUESTION AS ON 15-0-2010. THE AO WILL ALSO FIND OUT FROM THE STAMP VALUATION AUTHORITY THAT WH AT WAS THE REASON FOR TREATING THE LAND IN QUESTION AS COMMERC IAL LAND WHEN AS PER LETTERS OF THE JDA AND ALSO AS PER SALE DEED EXECUTED BY THE ASSESSEE , THE LAND IN QUESTION IS A RESIDENTIAL PR OPERTY. IF UPON ENQUIRY, THE AO FINDS THAT THE CLAIM OF THE ASSESSE E IS CORRECT THAT THE CAPITAL ASSET WAS RESIDENTIAL NATURE, HE WOULD ACCORDINGLY APPLY THE DLC RATE PRESCRIBED FOR THE RESIDENTIAL P ROPERTIES FOR COMPUTING THE FAIR MARKET VALUE OF THE CAPITAL ASSE T. IN THE LIGHT OF THE ABOVE DELIBERATIONS, THE GROUNDS RAISED IN THIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. ACCORDINGLY, THE AO IS HEREBY DIRECTED TO MAKE ASSESSMENT DENOVO IN THE LIGHT OF THE DISCUSSIONS HEREINABOVE. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. RESPECTFULLY, FOLLOWING THE DECISION OF COORDINATE BENCH IN THE CASE OF SMT. ANITA SODHI VS. ITO (SUPRA), THE ISSUE IN QUES TION OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF THE AO TO MAKE DE NOVO ASSESSMENT. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES AS INDICATED ABOVE. ITA NO. 410/JP/2016 SHRI JASMEET SODHI VS. . ITO, WARD- 2(4), JAIPUR . 5 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06 /09/2 016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06/09/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI JASMEET SODHI, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 2(4), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 410/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR